R v Ashman[2023] QCA 130

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  The appellant was convicted of murder following a trial before a judge sitting without a jury.  When sentenced for that offence, he pleaded guilty to and was convicted of one count of assault occasioning bodily harm, as well as summary offences of burglary, stealing, attempted fraud and wilful damage, which were described as bound up with the assault, and further charges of burglary, stealing and attempted fraud, said to be bound up with the murder.  He was sentenced to a concurrent sentence of 12 months’ imprisonment for the assault, with no additional punishment imposed for the other offences.  He appeals against the conviction of murder on the ground that the verdict is unreasonable and cannot be supported having regard to the evidence.^[1]  He applies for leave to appeal the sentence imposed for the assault on the ground that the sentence was manifestly excessive.  For the following reasons, the appeal against conviction ought to be dismissed, and the application for leave to appeal the sentence ought to be refused.

Appeal against conviction

Relevant principles

2. [2]
   The High Court in Dansie v The Queen^[2] confirmed, at [7]-[8], that:

“… the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.

That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M.^[3] The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’,^[4] that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’^[5].”

3. [3]
   As the Court also said, at [15]-[16]:

“Filippou^[6] confirmed that the function of a court of criminal appeal determining an appeal on the unreasonable verdict ground is to be performed under the guidance of M in exactly the same way where the trial has been by judge alone as where the trial has been by jury^[7]. In each case, the court must conduct an independent assessment of the whole of the evidence to ask itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. In each case, the court ‘will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal’s advantage in seeing and hearing the evidence is capable of resolving that doubt’^[8].

Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.”^[9]

The charge, the trial and the ground of appeal

4. [4]
   The appellant was charged on indictment that, on 17 February 2019, at Granville in the state of Queensland, he murdered Darren John Ints (the deceased).  The particulars of the charge were that, intending to kill or cause grievous bodily harm to the deceased, the appellant had unlawfully killed him by stabbing him.
5. [5]
   The incident giving rise to the charge occurred at a unit complex in Granville, a suburb of Maryborough, where both the appellant and the deceased, as well as a number of other people, lived.
6. [6]
   The trial took place over four days from 9 May 2022, before a judge sitting without a jury.  The verdict, and reasons, were delivered on 27 May 2022.
7. [7]
   By the time of the trial, it was admitted that the appellant had killed the deceased on 17 February 2019.  The issues in the trial were whether he had done so unlawfully and whether, at the time he killed the deceased, the appellant intended to kill him or do him grievous bodily harm.  The basis on which it was contended the killing could not be proved to be unlawful was that the appellant had acted in self-defence, under s 271(2) of the Criminal Code.  The defence of self-defence was raised by evidence the appellant gave on his trial.
8. [8]
   On this appeal, the appellant submits the verdict was unreasonable because the evidence of the appellant could not be rejected beyond reasonable doubt and, consequently, the Crown could not exclude self-defence beyond reasonable doubt.  Alternatively, the appellant submits the verdict was unreasonable as the number and nature of the injuries to the deceased were not such that an intent to kill or do grievous bodily harm was the only reasonable inference open on the evidence.

The evidence at the trial

9. [9]
   As already mentioned, the appellant and the deceased both lived in a unit complex in Granville.  There were 10 units in the complex, which was a community housing property.  The deceased lived in unit 3, having moved in there in December 2016.  The appellant lived in unit 8, having moved in there in August 2018.
10. [10]
    The layout of the unit complex was such that each set of two units shared a common bathroom.  The deceased’s unit 3 and the appellant’s unit 8 shared a bathroom.
11. [11]
    At the trial, the court heard evidence from a number of other residents of the unit complex.  These included Mr Adrian Shaw, who lived in unit 2 at the relevant time.  On the morning that the deceased was killed, Mr Shaw was in his unit, which shared a wall with both units 3 and 8.^[10]  He described hearing “four to six really loud bangs and crashes” and hearing “things being smashed, like glass”, and then hearing a male voice screaming “fuck off; fuck off” really loudly, and more bangs and then dead silence.  He said this happened at about 10 am.  He went to his screen door and yelled out “what the fuck’s going on?” and said that he saw the deceased’s screen door was open.  He saw a “skinny white arm” reach out and close it slowly.  Mr Shaw decided to go over to the unit(s) of two other residents (Alan and Paul) and then went back to his unit.  A bit later he could hear things “started happening”, and eventually someone else kicked the door of the deceased’s unit to open it.  Mr Shaw went to the deceased’s unit and saw the deceased “lying in a lot of blood”.  He saw shattered glass all over the floor.
12. [12]
    There was evidence from Mr Paul Quill, who lived in unit 4.  He shared a bathroom with unit 7, which was occupied by Alan Bachman.  Mr Quill had lived in the unit since 2015 and had known the deceased since he moved in.  The deceased would visit him frequently.  At the time the deceased was killed, Mr Quill had a broken arm.  He had made a plan for the deceased to come and visit him that morning, which he did at about 9 am.  The deceased made him a cup of coffee and they watched TV for about 15 or 20 minutes.  The deceased then left and said he would come back; but he never did.  The next time Mr Quill saw the deceased was after the door to his unit was kicked open, and he saw the deceased lying, face up, on the ground.  Mr Quill said that, as he was walking towards the deceased’s unit, he saw the appellant at his front screen door, either coming in or going out.  In cross-examination, Mr Quill agreed that he had told police that the deceased would “sometimes get angry”, but in re-examination clarified that he meant he would sometimes “get angry with himself”, for example if he forgot the coffee he had made, or forgot his phone at home.  Mr Quill had never seen the deceased be violent.
13. [13]
    The person responsible for managing the unit complex gave evidence that, while the deceased had lived at the complex, he had moved rooms on one occasion because of conflict with another resident (not the appellant).  But she said the other resident was evicted because of the conflict.
14. [14]
    Mr Luke Martin lived in unit 9 at the time.  He said the deceased was a “friendly guy” who was “always helping someone out”.  Mr Martin had been away for work, and only came back to his unit the night before the incident.  On the morning of the incident, Mr Martin described seeing the appellant leave his apartment with a blue bag, like a shopping bag.  He thought this was probably around 9 or 10 am.  He followed him out to the carpark to see where he was heading.  He saw the appellant walk down the driveway and past the bottle shop.  He did not see the appellant again.  Mr Martin returned to his unit, and stayed there until a neighbour knocked on his door.  He went to the deceased’s unit, where he saw the deceased lying on the floor, with one of the residents (Alan) and another person, who was not a resident (Corey), trying to revive him.  Mr Martin took over and attempted to clear the deceased’s airways and continued “to do compressions”.  He described the deceased’s unit as a mess, with “blood everywhere”.  After the police and ambulance arrived, he was asked to leave.  Mr Martin said that not long before he had seen the appellant with the blue bag, he had heard “a bit of a commotion” coming from the direction of the appellant’s apartment (or perhaps a bit further, from the bottle shop nearby).  He said “it sounded like an argument… like people fighting”, and he heard a male voice say “fuck you”.
15. [15]
    Mr Alan Bachman lived in unit 7.  He knew the deceased well, because the deceased used to visit his unit regularly.  Mr Bachman said he had “mobility issues” and the deceased would visit him every day, several times a day, to make coffee, or having been to the shops for him, or just to hang out and watch TV.  Mr Bachman’s unit shared a bathroom with Mr Quill’s.  On the day of the incident, Mr Bachman woke up quite early.  The deceased came over “a bit before 5 o’clock” (in the morning) and they watched snooker.  A bit later, the deceased went to the shop “and got us a feed for breakfast”.  At the trial, it was admitted that, at 5.47 am on 17 February 2019, the deceased attended the Granville Takeaway Store and collected two hamburgers.  Mr Bachman and the deceased ate the hamburgers and then a bit later the deceased left and went back to his unit.  The deceased told Mr Bachman that if he needed a coffee, he should send him a text.  It was admitted that Mr Bachman sent two text messages to the deceased, at 10.49 am and then at 11.45 am.  He received no response, which he said was very unusual.  Two other friends, Chris and Adrian, had popped in to visit Mr Bachman.  When Mr Bachman’s text messages to the deceased went unanswered, he was a little worried, and Chris and Adrian went to check on him.  Mr Bachman followed them, a bit more slowly because of his mobility issues.  He heard someone say there was blood on the (deceased’s) door and he saw someone kick the door down.  When he went in, he saw the deceased “lying up against the couch sort of semi-sitting”.  Mr Bachman had training in CPR and proceeded to try to revive the deceased.
16. [16]
    Mr Sunil Zachariah had formerly lived in unit 10, but had moved out.  However, on the day of the incident, he had gone to visit the deceased.  He knocked on the deceased’s door and there was no answer, so he went to see Paul, one of the neighbours.  He was sitting in Paul’s unit when Alan’s friend, Chris, walked past on the way to the deceased’s unit.  He did not go with them to the deceased’s unit.
17. [17]
    Alan’s friend, Chris Rixon, gave evidence.  He said he got to the unit complex to visit Alan at about 11.45 am or 12 pm on the day in question.  He visited Alan every day or every second day, to make sure he was alright.  After speaking to Alan, he went to the deceased’s door and knocked on it.  He saw blood on the door, below the doorhandle.  There was no answer, so he returned to Alan’s unit and then he and another person called Corey went to the deceased’s door and kicked it in.  They saw the deceased “laying motionless on the ground”, on his back.
18. [18]
    Mr Corey Jones was another regular visitor to the unit complex.  He also visited Alan on that day, to have a coffee and a chat with him.  He was the person who kicked the door of the deceased’s unit in, and saw the deceased lying just past the door on his back.  Mr Jones also assisted in trying to revive the deceased, before the police arrived.
19. [19]
    Mr Justin Moore lived in unit 1, which shares a bathroom with unit 2.  Other than hearing “Adie next door” (who I infer is Mr Adrian Shaw, the resident of unit 2) yelling out “fuck fuck” at about 10 in the morning, and seeing “Adie, Al, Paul [and] Corey” all standing at unit 3 from his doorway, he did not see anything.
20. [20]
    Police officers and paramedics arrived at the unit complex around midday.  They went to unit 3, where the deceased was found lying on his back on the floor.  Further attempts were made to revive the deceased.  However, these attempts were unsuccessful and he was declared dead at 12.12 pm.
21. [21]
    One of the officers, Detective Sergeant Polit, described going to the adjacent unit 8 (the appellant’s unit) and knocking on the door for quite a period of time, with no response.  Another witness, Senior Sergeant  Everest, said he knocked on the window several times as well, quite loudly, to see if there was anyone inside.  There was no response.  A locksmith was called, but the tool they had did not work, so eventually they resorted to using a jemmy bar to open the door.  The police found the appellant inside, lying on his bed.  When they entered, the appellant “just stood up and walked towards” the police officers, and he was escorted outside.
22. [22]
    Residents of a house further down the street from the unit complex found a blue Aldi shopping bag (an insulated cooler bag) and a backpack hidden in a bush on their property, which was near the river.  Police officers came to the house and inspected the bags.  In the cooler bag, they found a yellow handled knife which appeared to have blood on it, and which had a red and white tea towel wrapped around the handle, tied with string.^[11]  Also found was a white T-shirt which also had blood on it, a bottle of “Pine o Cleen” and a bag of rubbish which included things like empty toilet rolls with blood on them.^[12]  The appellant’s fingerprint was on the yellow knife.  Inside the backpack there were things including an electric razor, a sheet, a towel and bathmats, as well as a black handled steak knife.^[13]
23. [23]
    The forensic pathologist who gave evidence at the trial, Dr Day, analysed the yellow-handled knife^[14] and described it as being 28.5 cm in overall length, with a 15.2 cm blade.  He was also given the other knife, the steak knife.^[15]
24. [24]
    Dr Day observed 34 sharp force injuries (that is, stab wounds) to the deceased’s body, as well as some blunt force injuries, in particular an injury just below the crown of his head and to his chest.  The sharp force injuries were to the deceased’s face, neck and torso, and all inflicted at or around the same time (although he could not say in what order).^[16]  They were variously described as having been made with mild or moderate force, and in one case severe force, and consistent with having been inflicted with either of the knives.  Some of the injuries to the torso were clustered together.  Dr Day said that four separate injuries penetrated the pericardial sac, which is the lining over the heart, and four separate injuries entered the heart itself.  Of those, one entered the right chamber of the heart, and terminated within the aorta; and another two entered the left chamber of the heart.  The maximum depth of those injuries was 7.5 cm from the skin’s surface.  These injuries would have been inflicted with a moderate degree of force, and in one case, a severe degree of force.  There were also injuries to other parts of the torso, lower on the stomach, over towards one armpit and close to the wrist.
25. [25]
    Dr Day said that each of the stab wounds would have resulted in external evidence of bleeding; and there was also a “great degree” of internal bleeding associated with the injuries to the chest wall, in the cavity surrounding the heart.  The cause of death was said to be “stab wounds to the neck and chest”.  Dr Day said there was evidence that once the heart had been penetrated, there was ongoing pumping of the heart – because of the amount of blood collected around the heart and in the cavity, as well as within the left chest cavity.  Dr Day said “there certainly can be activity following an injury of this degree … it’s not an injury that would have caused immediate… incapacitation”.  He did not consider there would have been sudden cardiac arrest as a result of the stab wounds to the heart; there would have been a period following injury where the heart was still active.  However, once the injuries to the heart had been sustained, without immediate surgical intervention, death was inevitable.  Toxicology tests showed a small amount of cannabis and a therapeutic level of an anti-psychotic drug (typically used to treat schizophrenia or other psychotic episodes or conditions).  They did not play any contributing role in terms of his death.
26. [26]
    It was admitted at the trial that the appellant had walked past an address further up the street from the place where the cooler bag and the backpack were found, at 10.14 am on 17 February 2019.
27. [27]
    In a garden area outside unit 8, police found a pillowcase that contained green leafy material (admitted to be cannabis), a pillow, the lid from a small cardboard box and a chux cloth.
28. [28]
    Police officers examined the scene and there was evidence of blood to be found on the pathway leading into unit 3 (the deceased’s unit), in the doorway to the unit and on the front door.^[17]  There was also blood found on the top of the kitchen bench and on an armchair in the room near where the deceased was found.^[18]  There was photographic evidence of blood drip stains on the bedroom carpet (of unit 3), leading into the hallway outside unit 3 which takes you to both unit 8 (the appellant’s unit) and the shared bathroom.^[19]  Bloodstains were also found on the outside doorhandle of the door from the hallway to unit 3.^[20]  There were bloodstains on the doorway of the shared bathroom.^[21]  And in the bathroom itself – on the exterior surface of the door, on the shower screen, on the floor around the toilet and inside the toilet bowl,^[22] as well as on the wall next to the toilet.^[23]  A pair of spectacles (glasses), which belonged to the deceased, was found on the floor of the bathroom, under the sink, also with blood on them.^[24]  There were also bloodstains found in areas inside unit 8, for example, on the coffee table, kitchen cabinet doors and a towel under the bed.
29. [29]
    Extensive admissions were made about the outcomes of DNA analysis of the various swabs taken from the scene.  It is unnecessary to refer to the content of those admissions.
30. [30]
    Detective Senior Constable Inch arrived on the scene shortly after 12.30 pm.  Her first interaction with the appellant was about an hour later, at 1.26 pm, when the police gained entry to unit 8.  She had a conversation with the appellant which was recorded on another officer’s body worn camera.^[25]  The video shows the appellant handcuffed, and having “peed” himself.  DSC Inch introduces herself and tells him that he is under arrest for homicide.  He says “alright, no worries… yep”.  It is apparent that the officer cautions the appellant, although the details of that cannot be heard on the video recording, because the officer wearing the camera is walking around unit 8, whilst DSC Inch is speaking to the appellant, in the presence of other officers, outside.
31. [31]
    In response to being asked “what happened today?” the appellant says that last night, or this morning, he “heard a yell”, “[a]nd then there was a note there, um that said, if you roll one up, if , if  [indistinct].  If I like tried to hide, if I tried to clean some stuff there, some blood on something.  So, I hid some stuff over there, in there” – pointing the garden area.  He went on that “like, when I realised that you guys were at my door, I shit myself… And then, yeah, I don’t know who killed him or what happened, or what the go is.  Homicide’s a murder, isn’t it?”.  He said that he “burnt the note”, “inside” and then put it down the drain, in his kitchen sink.
32. [32]
    The appellant said he had gone into Darren’s (the deceased’s) room “about half an hour ago” – through the bathroom that he shared with the deceased.  He said that he:

“Just walked through, ‘cause I heard a big bang, bang, and I was knockin’, and seein’ if he was alright.  See if he’d answer it.  So, I opened it up and then I found, and I, and then I found it.  And it said sh, no, ah, leave it, the note, saying sh, no-one leave it, roll one up.  So, they must’ve known that I like weed, like to smoke.  So, I took his weed and then I had to burn the note, clean the little bit of blood up and then, burn the cloth too.  He said, any, like any little spicks and specks type of thing, with the winky face so yeah.”

33. [33]
    The appellant said he wiped a little bit of blood up, from the bench.  Later he elaborated that, having gone into the room and seen the note, he went back to his unit to get a chux cloth to wipe up the blood with.  He said he did not know if there had been a fight, because [the deceased’s] shirt was full of blood, “but I don’t know if it was his blood or the other person’s blood.  So it must’ve been the person that’s done it”.  He said after he had “rolled one up” and smoked that, he heard “you guys at the door, I shit myself and tried to hide it in the bush” – that is, the pillow and the weed.  The appellant said all that he had seen in the room was the deceased on the floor, who looked like he was dead, and the note.
34. [34]
    When asked if he had called for any help, the appellant said “Ah, nuh.  I was gonna call tomorrow.  They said to wait, the note included waiting ‘til tomorrow, so yeah.”  He said that he felt like he might have been in danger if he didn’t wait until tomorrow.
35. [35]
    The appellant said he stole the weed, which was on the kitchen bench, and some cigarettes, and “rolled one up” and smoked it in his room and burnt the note.  He also burnt the cloth that he had wiped the bench with.  He said “so, I didn’t do it – I didn’t do the murder, but I did steal and I was gonna wait ‘til tomorrow.  It said to give it just to wait… at least a day, so I don’t know who done it, but yeah”.
36. [36]
    The appellant said he heard a fight next door, “a couple of yells” and then “bang, bang, bang”.  And then he knocked at the door, because “it’s a neighbour” and when he went in, he saw the note and the body.  He said the note said “don’t ring ‘til tomorrow” and “any spots can you wipe?” and “roll one up” with a “winky face”.
37. [37]
    The appellant referred to the note that was left again, saying “the person that done it left a note and told me to smoke one up, just bein’ funny… ‘Cause he didn’t like him, and I wasn’t a fan either”.  When asked why he wasn’t a fan of him (that is, the deceased) the appellant said “he was just rude”, and went to say that it was because of “just sharin’ a bathroom, just rude, not cleaning up his side of the mess and stuff like that”.  But he said he had not had arguments with the deceased in the past.
38. [38]
    Having walked in through the bathroom door, the appellant said that before he left he made sure the front door of the unit was locked “so no one caught him ‘cause of the note”.
39. [39]
    When asked if he had walked anywhere else in the deceased’s unit, the appellant said that he went through a couple of drawers in the bedside table, to see if there was any money, saying “I thought, fuck it, if he’s dead might as well.  Might as well try it, you know, get it all”.  He found the deceased’s wallet, but there was no money so he “chucked it back in”.  He added “so yeah, I didn’t do the homicide, but I did, might of assisted with hiding it.  I am guilty of that, but yeah”.
40. [40]
    When he was being asked about what he had put in the pillowcase, that he hid in the garden, the appellant said “is there a knife?... There might have been a knife… There might have been a knife… If there was a knife then I forgot about it, just remembered then…  Like a little black one…”.  When asked where that knife came from, the appellant said “well, I gave him a coupla knifes and forks, so I’m pretty sure it was one of mine”.  And as to why he had removed that knife and put it in the pillow, the appellant said “um, ca-, I think I used it for the weed… like to scrape it into a bowl for me”.  Although he later said the knife was on the note and, after he touched the note, he’d “gone, ‘fuck’, ‘cause it’s got my fingerprints on it.  And now I have to hide it.  And then left a note there, roll one up, well, exactly what I told ya.  So, I had to try and hide a knife for him.  Which I, which I thought I’d get away with, but yeah…”.
41. [41]
    The appellant was asked if he had had a shower since he went into the room and he said he had.  When asked why, he said “‘cause I felt sick… ‘cause of the blood… from Darren”, although he did not think he had the deceased’s blood on him.
42. [42]
    Towards the end of the interview, the appellant was asked if he’d usually do what a note written by someone he didn’t know said, and he responded by saying “a deal’s a deal”, and when asked what he meant by that, he said “I get a bit of weed, get some cigarettes and stuff.  I thought I’d get some money too if I locked the door… and hide the knife… So I thought might as well”.  He said he hid the knife because it had his fingerprints on it, and “it mighta had his on it too” and he thought “I’m gonna get done if I don’t try and hide it”.
43. [43]
    The interview finished at 2.18 pm, and the appellant was then taken to the police station at Maryborough.  A formal interview was conducted there, starting at 2.39 pm and finishing at 5.00 pm.^[26]
44. [44]
    The interview began with DSC Inch repeating to the appellant the things he had said in the field interview earlier, and asking him to correct or clarify anything that he wished to.  In the course of that, the appellant confirmed and reiterated that what he had said earlier was correct, adding some details.  In relation to why he went into the deceased’s room, the appellant said:

“I heard two people yelling … Like I heard two people yelling and then I heard a couple of bangs.  Then I heard someone leave.  And then like I heard the door shut.  Um and I waited about what fifteen and knocked on the door.  Cause it didn’t involve me.  And then yeah there was a note left for me.  So yeah oh like bang, bang, then he must have stayed there for a bit, done the note and then he was gone.”

45. [45]
    He further clarified:

“… I found a note and there was a knife holding the note down.  And then um there was a little bit there but I had to clean up.  The note said um it said yeah can you, can you give this a wipe and roll one up and wait till tomorrow, with a winky face.  So I got, I got a wipe from my kitchen, wiped it up; took the knife and then took his weed.  And then when I heard you guys at the door, that’s when I threw the knife and the weed in my pillow and then tried to hide it in the bush out the front.  Then run back in…”

46. [46]
    When the detective was repeating what the appellant had said about the black handled knife, including that the person (who left it on the note) must have known him as they left out the knife, the appellant said:

“Yeah like it’s like it might have been a coincidence or … his knife might have snapped and he might have used Darren’s just to like help finish killing him or something… or something like that.  But yeah.  Then I, then yeah I tried to hide it in the bush… I was gunna ring you guys tomorrow and um yeah try and hide, go hide that knife and stuff a little bit better than I did.”

47. [47]
    The appellant was asked about what he had done, after waking up in the morning.  He said he had gone for a walk, around 10 o’clock, and tried to buy some cigarettes from the servo, although his card didn’t work, he didn’t have enough money, so he went home.  When asked which servo he went to, the appellant said:

“… the one in Granville.  That was after the body.  That was like after.  As soon as after went and smoked a joint and tried to buy cigarettes.”

48. [48]
    The admissions included that the appellant walked past the BP service station at 10.20 am; and walked into the BP service station at 10.22, leaving a minute later.  He returned to the service station at 11.09 am.  It was also admitted that “both transactions attempted by the [appellant] at the BP service station were on the same NAB bank card belonging to the deceased”.
49. [49]
    Returning to what the appellant told police he had done after getting up, he said he was “just chillin”, listening to music:

“And then I heard … two, Darren and someone else yelling.  Like real quick.  Called him a, pretty sure he called them a dog or something.  Someone called, said ‘dog’.  And then um and then yeah I heard a couple of bangs and I thought well that doesn’t involve me, I’ll stay out of it.  But then I could, I had a weird sickly feeling.  So about what twenty minutes later or so I knocked on the door and saw the note and the knife and tried to hide the knife and stuff for him… and took the weed.  And I felt like if I rang then my family were in danger so … you know what I mean?”

50. [50]
    He reiterated this a bit further into the interview, referring to seeing the note with the knife laying on it, and said:

“… I felt like if you left that [rolled up] or something he he must know me or knows my family and knows that I’d, I’d smoke weed here and there you know what I mean.  So I didn’t want to go ringing you guys cause he would, he would know my family if he knows that I like you know little stuff like that, it could be bigger.  So yeah it’s, I know it’s illegal but yeah it was worth waiting.”

51. [51]
    The appellant gave police more detail about the sound of Darren’s (the deceased’s) voice, and the sound of the voice of the other person that he said he had heard (a deeper voice, of about a 30 year old, not a voice he had heard before).
52. [52]
    He repeated what he had told police happened after he knocked on the deceased’s door and went in:

“And then I found a note with the knife on it.  Um wiped this black stuff off the bench.  Cause the note said to.  Can you give that a wipe, hide that and roll that up with a winky face.  And oh, can you, no it was something like can you wipe that; um hide that; wait till tomorrow and roll one up, with a winky face on it”.

53. [53]
    The appellant was asked details about what he had done before he went to the deceased’s room, and what he saw when he first entered, including how he saw the deceased, lying on the floor.  The appellant said, of the deceased:

“I thought he was normal but he was a little bit unhygienic with the bathroom.  I was the one that was cleaning it.  But I’m not gunna kill anyone over that.”

54. [54]
    He said he saw the deceased’s shirt was covered in blood.  He thought the blood came from his stomach, as he saw stab wounds, “like slices, little slices in his shirt”.  He said he touched the deceased on the arm, saying his name, but as there was no noise “I knew that he was dead”.  He then saw the note and the knife, grabbed the weed, went through his drawers looking for money.  He then had to have a shower “cause I felt so sick”.  He said he noticed there was a “little bit of blood on the toilet” which he had to wipe up.
55. [55]
    The appellant repeated the same narrative each time he was asked questions by the police officer.  At times he added a new detail.  For example, in the context of being asked about what he did with the blue cloth that he used to clean up the spots on the bench in the deceased’s unit, the appellant said:

“I burnt one, I think I might have put another one in the bin.  Cause I, I had like something on my floor, think a bit of blood on my floor that I might have stood on accidentally from the bathroom.  So I had to wipe that up and I put that in the bin.  So I burnt one and I forgot and I got, I was gunna chuck that tomorrow, before I rang you guys.”

56. [56]
    When asked about the blood from the bathroom,  the appellant said:

“… there was like a tiny little bit I think of blood that I must have got on my toe, cause I had to wipe it off with my, with the cloth that I put in my bin.  It was on yeah… or it might have been from touching his arm or something but yeah I did have blood on me.  I just remembered just then…”

57. [57]
    He then went on to describe having blood on his leg and arm as well, but said he had “no idea” how that would have happened, but that it “must have been from a wall or something”.
58. [58]
    The appellant described how he had a shower after he had left the deceased’s unit.  The police officer mentioned that when police arrived at the appellant’s unit, he had “wet [him]self”, and asked if he could explain that.  The appellant said:

“I was just so nervous.  Cause … cause of the body next door.  I didn’t want to go to the toilet, I didn’t want anything to do with it you know what I mean?”

59. [59]
    The appellant again said that he had not previously had any arguments with the deceased, although thought he was rude “with the bathroom” because he did not clean it.
60. [60]
    A fair way through the interview, the police officer returned to what the appellant had said about going to the servo to try to buy cigarettes.  She asked whose card he had used.  The appellant said he “tried to use mine and his”.  As to when he got “his” (that is, the deceased’s) bank card, the appellant said he took it when he went through the drawers and found the deceased’s  wallet, saying it was a black NAB card.  He walked down to the servo to see if he could get cigarettes; was not able to; so he walked back home, went into the deceased’s unit and put the deceased’s card back in his wallet.
61. [61]
    The appellant said he changed his clothes again, because “I didn’t want to go into the toilet or near the body again”, “so I just avoid, avoid it and just try and piss into a shirt [and] changed my pants cause I got piss on my pants”.
62. [62]
    The other police officer present, Sergeant Polit, asked some further questions, including pressing the appellant about the implausibility of what he was saying, and the appellant continued to reiterate his story – summarising towards the end of the interview “I burnt the note, I wiped that thing and I tried to hide the knife… And I tried to yeah get a pack of cigarettes, steal some steal a little bit of money.  So I done four things wrong.  But yeah I didn’t kill him.  I don’t know who did”.
63. [63]
    The admissions included that the police located a black NAB card in the deceased’s name, in his wallet in his bedside table in unit 3.  The transactions attempted by the appellant at the BP service station, at about 10.22 am and 11.09 am, were on the same NAB bank card belonging to the deceased.
64. [64]
    After a break towards the end of the interview, the police officer proceeded to ask the appellant some further questions about how he walked to the BP service station.  DSC Inch told the appellant that “we have received some information about some property that was located near your house”.  She describes this as a blue cooler bag, with some things in it including a “red and white checkered T towel … with a bloodied knife poking, protruding out the end”.  She appears to show the appellant a photograph of the bag, and asks him “what can you tell me about that?”.
65. [65]
    In response, the appellant said: “Yeah yep that was another knife that I had to hide for him.  And then I tried to hide it down past someone else.  So I had to do two trips”.  He also said: “Well yeah I tried to hide it down there for him or I cleaned it up for him cause there was a couple of knives.  And yeah.  I didn’t think I’d get caught with that one, but yeah I did”.  He said he put the bag “down near there this morning”, “down near the water”.  When asked “how this property came to be in that blue bag”, the appellant said:

“Me.  It had a list of what to put in a bag and hide it or my family would have gone.”

66. [66]
    It is apparent that what he was referring to (“It had a list”) was the note that he said he burnt and washed down the sink.
67. [67]
    The appellant said he found the knife (that was in the blue bag) on the floor, in the deceased’s room, near his leg.  As to how the knife was when he found it, the appellant said:

“Just like that, like exactly like it was.  Had blood on it and stuff.  And then that shirt, whatever it is I used to wipe the toilet, cause they must have got him in the toilet.  And then they had stuff all the way to the to the front door.  So I used that so I could go to the toilet and have a shower.  And yeah … so I had to hide that bag, the note said.  And then that other knife.  I quickly had to hide as well.”

68. [68]
    The appellant reiterated again that “this is what happened”:

“I heard a door and then bang.  I tried to clean and wipe my bathroom, my bit, leave that, ring you guys in the morning.  And get rid of the stuff that he, that the note said to do or my family could get hurt.  So I was protecting my family doing what I did.  So I don’t see how I could get done for fuckin, for homicide or for murder.  I could get done for you know not ringing you guys up straight away and hiding some stuff, but at the end of the day I got threatened if I, if I didn’t do what I did.  So yeah sweet as.”

69. [69]
    When asked “who threatened you?” the appellant said “the note with the winky face”.
70. [70]
    He continued:

“When you see a person on the floor with blood all over his shirt with a winky face you get, you think you’re dealing with a psycho.  So you do, you do what the note says and try to hide it.  And yeah … I didn’t, I didn’t come clean about that.  And yeah I tried to get two bags and chuck em all the way over there but yeah.”

71. [71]
    The police officer pressed him as to what he meant by “two bags” (the police having only mentioned one bag to him), and the appellant said “oh it was one”, “one or two I can’t remember”.
72. [72]
    Following some photographs being taken of him, the appellant was placed in a watchhouse cell, and an undercover officer was placed in the cell with him.  The undercover officer was there on the night of 17 February 2019, for just under an hour, and then again the next morning.  His conversations with the appellant were recorded and tendered in evidence.  In these conversations, the appellant repeated the same story that he had told police (that he did not kill the deceased; about the note, and the threat to his family; and hiding some things because the note said to etc).
73. [73]
    The appellant elected to give evidence at the trial.  As already noted, contrary to what the appellant had told police in the field interview and formal record of interview, at the trial admissions were made which included an admission that the appellant had killed the deceased on 17 February 2019.
74. [74]
    In his evidence in chief, the appellant said that he moved into unit 8 in about Easter 2018.  He referred to the fact that he shared a common bathroom with the deceased, and said that, up until February 2019, he and the deceased had not had a problem.  On the day in question, 17 February 2019, he remembered waking up and “having a shower and going to the toilet.  And then I heard a knock on the door”.  This was around 10 o’clock.  He said:

“I remember having a shower and sitting on the toilet, going to the toilet, and I heard a knock on the door and I said, ‘Hold on. I won’t be long.’ And then he – I heard Darren say, ‘Well, hurry up because I got to go.’  And I said, ‘Yeah. Well, there’s not much I can do.’ And then I heard him – I heard him say, ‘Well, hurry up. I’m going to come in there and sort it – sort something out,’ so I ended up telling him to fuck off.”

75. [75]
    The appellant said the next thing that happened was:

“He opened up the door.  I saw him come in the room, so I put – I went to put my pants back on before I could get off the toilet and – and he – there was a knife on the bathroom vanity that I left, I think, a couple days ago because I was – I opened a pack of razors with them – new razors.  And he sort of – he went and  grabbed the knife and I was just in shock because I didn’t know what was happening because I thought he might be on drugs or something, just charging into the bathroom.”

76. [76]
    The appellant said the deceased “went for the knife – lunged for the knife” – describing it as a “big one with a yellow handle”, which he described as sitting on the edge of the sink.^[27]  The appellant said the deceased picked up the knife and came towards him, saying he held the knife with a closed fist, in his right hand, with the blade facing towards the appellant, and “sort of went for my throat at the same time” with his left hand.  He said that “as he’s grabbed my throat [with his hand], I’ve hit him [in the face] with my right fist”.  The appellant said that, as he did that, he put his left hand up to grab the knife, and “I’ve got the knife off him and I’ve managed to put it in my right hand and that’s when I started stabbing him”.  The appellant said he was “in fear for my own life”.
77. [77]
    The appellant said he remembered stabbing the deceased over 10 times, saying “I just kept going till he sort of fell on the ground”; and “I had to keep going until he sort of backed off”.
78. [78]
    The appellant said that after the deceased “dropped on the floor”, he ran back to his unit, shut and locked the door (the hallway one).  He said he was in shock, and thought that if the deceased got back up, “he could probably come in or break that lock in the hallway [door] and/or come around the front door and sort of attack me through that”.  So he went and got another knife (the steak knife), and sat and waited in his room for a couple of minutes.  Then he thought he had better go and see if the deceased was “alive or if he’s gone or if someone’s there and called the cops and stuff”.
79. [79]
    He said he waited about five minutes and then went back to the bathroom.  The deceased was not there, but there was a lot of blood.  He said he could see the knife with the yellow handle in the bathroom, but left it there.  The appellant then walked into the deceased’s unit, to see if he was there “because the door was wide open” and found that “he was still alive on the floor”.
80. [80]
    The appellant said he had various thoughts running through his head – should he run back to his unit and lock the door?  Or should he call the cops?  As to what he actually did, the appellant said:

“I remember walking in with that knife – with the knife I had in my hand and I remember seeing him still alive on his back and he ended up – he sort of woke up, half-alive or could’ve been a full alive – I’m not too sure – but he went – he went and lunged at my ankle so I sort of instinctively just put the knife in his throat and then went back into my unit.  It was just an instinct sort of reaction.”

81. [81]
    As to why he stabbed the deceased again, the appellant said he was “just still in fear that … he was going to get back up and attack me”.
82. [82]
    After that, the appellant went back into the bathroom, “got that knife” and then went back into his unit and locked the door.  After about 10 or 20 minutes, he “sort of felt sick from all… the knives and stuff and the blood” so he went back to the bathroom and cleaned up the blood and went to the toilet.  Then he put “all the stuff” in a bag and went down to the end of the street and put that bag near the river.
83. [83]
    The appellant said before he did that, he went back to the deceased’s unit quickly “to get his card because he owed me $20”, and also grabbed some “chopped up weed” which he ended up smoking to try and calm himself down.  He said that after he put the bags down by the river, he tried to buy “smokes” with the deceased’s card, from “the servo”, but it did not work.
84. [84]
    The appellant said he came back to his unit, and saw the other knife and a box of “smoke stuff” and that made him feel sick too, so he put that in his pillow case and put that in the bush next to his unit.  Then he went back to his unit, put his earphones in and listened to some music.
85. [85]
    As to why he lied when the police turned up, the appellant said:

“I was just too embarrassed over what – what just happened on the toilet, sort of had that much, sort of run it through me that I ended up just making a fake story, and yeah.”

86. [86]
    The appellant said he stabbed the deceased in the bathroom to “defend myself” “because he came at us with the – with – at my throat and with the knife in his right hand.  I just felt like my life was in danger”.  He said his intention was to stab the deceased “enough so he didn’t attack me, so I knew that he wouldn’t get up and attack me”.
87. [87]
    In cross-examination, the appellant said he “didn’t really have anything against [the deceased] apart from just sort of the bathroom issue and the $20”.  The “bathroom issue” was that the appellant had cleaned it three times and he said he had not seen the deceased clean it once.
88. [88]
    The appellant was asked some questions about the yellow-handled knife, the one that was found with the tea-towel wrapped around it.  At first he said he had not wrapped the towel around it, but then said he thought he might actually have done that “because the handle was a little bit sort of, like, dodgy so – so I put that on it, I think, before I opened the razors”.
89. [89]
    In relation to the razors, the appellant said he opened the packet in the bathroom, and left the razors in the bathroom.  When asked where in the bathroom he left them, he said “I’d say the drawer”.  When asked where the drawer would be found in the bathroom, the appellant said “it’s probably on the bathroom door”.  Having regard to the photographs of the bathroom (exhibits 122 and 123), it is clear there are no drawers in the bathroom.  The sink is free-standing, in the sense that it has no bathroom vanity or cabinet around it.
90. [90]
    The appellant said that he caused all of the wounds, except the ones to the deceased’s neck, in the bathroom, and that he did all of those with the yellow knife.
91. [91]
    It was put to him, in cross-examination, that the deceased had been in the bathroom, and that the appellant had come in and attacked him with the knife.  He denied that.
92. [92]
    In relation to the appellant’s evidence about what he did, after stabbing the deceased, the following exchange took place in cross-examination:

“Well, after you left the bathroom, you must’ve realised that Darren was severely injured?---Yep.

He was bleeding profusely?---Yep.

And you left him lying on the ground?---Yep.

That’s what you say happened?---Yeah, yep.

You said you dropped the knife. Why did you drop the knife?---I just dropped it.

You said you were in fear for your life from Darren?---Yeah.

Why would you drop the knife and leave it with this man?---I was in fear and shock, just – I didn’t even know what I’d – I had really done myself. Do you know what I mean?

You must’ve been upset?---Yep.

Panicked?---Yep.

At that point, as far as you’re concerned, you hadn’t done anything wrong?---No.

And you went back to your room and locked the door?---Yeah.

Why didn’t you go leave your unit and go get help?---Because I didn’t really think about it.

You had a phone in your room?---Yeah.

A mobile phone?---Yep.

You could make telephone calls on that?---Yep.

Did you ring for help?---No.

All right. And you say you wait in your room for five minutes?---Yeah.

All right. And in that time, you’re actually quite concerned that Darren’s either going to get in through your locked hallway door - - -?---Mmm.

- - - or perhaps get in through your front door?---Yep.

All right. And your front door had a screen?---Yep.

That screen could be locked?---Yep.

And it had a wooden door?---Yep.

And that door could be locked?---Yep.

All right. And you were concerned he might come in through there?---Yeah, yep.

Okay. And you armed yourself with a knife, you said?---Yep.

And is that the black-handled knife that we see in the photographs?---Yep.

Now, you agree that after five minutes, are you still feeling panicked and upset?---Yep.

Are you still in fear of Darren at this point?---Yep.

All right. You say that you choose to go back into the hallway to the bathroom?---Yep.

And why did you do that?---Because he might be like coming at me. He might break into that hallway door with the knife or something.

But it was locked and closed?---Yeah, but I wasn’t sure if he could crack it with the knife.

So you decided to unlock your hallway door?---Yep.

Open the hallway door?---Yep.

And walk into that hallway?---Yep.

And at that stage, do you say you were still fearing for your life?---Yeah. I wasn’t really thinking straight.

Okay. And you say you look in the bathroom?---Yep.

All right. Are you calling out for Darren? Do you call out for help from anyone else?---No, no.

What did you see in the bathroom?---It was just some blood and that yellow knife.

Do you pick up that yellow knife at that point?---No.

All right. You’re still in fear of Darren?---Yep.

You must know he’s at least alive at the point you’ve left him because he’s no longer where you last saw him?---Yep.

Are you still fearing that he’s going to attack you?---Yeah, yep.

Yep. Are you still in fear for your life at that point?---Yeah, yep.

Okay. And you said the door – that hallway door to his unit was open?---Yep.

All right. So you see the blood, you see the knife. You don’t pick it up. Do you say you’re carrying your black-handled knife?---Yep.

And what do you do?---Walk into his unit and he’s on the floor like sort of facing the roof on his back.

Now, we’ve seen some photographs of Darren lying in that room on his back with his feet pointing towards the door. Is that where he was when you walked inside?---He was on – no, he was on his – yeah, yeah. He was too. Yep.

Right. And he’s – was he lying in that same way that we can see in those photographs?---Yep.”

93. [93]
    The appellant said that Darren (the deceased) “was more alive”, because he could hear him breathing, and there was blood on his shirt, and a “little bit” in the bathroom, but there was not as much as in the photos (put into evidence).
94. [94]
    It is at this point that, the appellant said, the deceased “lunged at my ankle”, while he was lying on his back, and just using his arm.  The appellant’s evidence was as follows:

“Okay. While you were in Darren’s kitchen area, then, and he’s done that, what did you do?---I just instinctively went to protect myself again and put the knife in his throat.

All right. Were you standing up at the point that he grabbed your ankle?---Yeah, I was still in fear, yeah, standing up.

All right. So you’re standing up and he’s lying on his back on the ground. And just his arm moves towards your ankle. Explain to me what movements you have to make to stab him to his neck?---I, sort of, had to just kneel down and – and go for his neck.”

95. [95]
    It was put to the appellant that what had occurred was that, after being attacked in the bathroom by the appellant, the deceased had made his way from the bathroom to his own unit, and tried to go out the front of the unit, but that the appellant had followed him and prevented him and pulled him back into the unit where he collapsed on the floor.  He denied that, although accepted that, after stabbing the deceased in the neck, he did shut the wooden external door of the deceased’s unit and then went back to his unit, grabbing the yellow knife from the bathroom on the way.  He agreed he locked the door because he did not want anyone to find the deceased, because he “didn’t really trust anyone at that time near me”.  He said:

“Because I knew that Darren knew them as well and I wasn’t sure if they were mates or not. And I knew if they saw Darren, they might attack me, thinking that I’ve attacked him.”

96. [96]
    Although the appellant agreed that by this time he knew the deceased was severely injured, he said he was still scared, and still worried about the deceased coming to hurt him.  He did not think to call anyone to help him, although he had his phone.  As to why he did not, the appellant said:

“And why didn’t you do that?---I was just in shock and felt that sick that I didn’t – if – even if I did ring them on the phone, I was a bit too embarrassed to tell them what had happened straightaway and, yeah, it just overcame me where I ended up lying to the police about what happened straightaway. So I just knew I needed to chill out and it could be a day or two before I end up ringing anyone or telling anyone what happened. I was just in that much, sort of, shock and fear and stuff.

All right. But you thought your embarrassment might pass in a couple of days and you might tell someone what happened?---Yeah, that’s – that was the plan when I was all right to talk about it.”

97. [97]
    The appellant said that, after returning to his unit, he took about 10 minutes to calm down, and then went to clean up the toilet, and then wanted to get the knives, and the cloth that he wiped the blood up with “away from me” because “it made me feel sick”.  He put some of the things in a cool bag that came from his unit.  He was not too sure whether the backpack was his or the deceased’s – although later agreed it was probably the deceased’s, because of the things found in it (including the electric razor).
98. [98]
    The appellant agreed that he went back to the deceased’s unit, saw he was still on the floor, was not sure if he was alive or dead, but went into his bedroom to look for his wallet.  He also took the cannabis from the kitchen bench.
99. [99]
    As to what took place between the appellant and the deceased in the bathroom, at the start of the incident, and how he got the knife out of the deceased’s hand, the appellant gave the following evidence:

“Now, do you agree Darren wore glasses like I’m wearing glasses?---Yeah.

All right. Are they the ones we see in the bathroom in the photographs?---Yeah.

All right. Did you knock them off his face when you punched him?---I think so, yeah.

All right. Whereabouts in his face did you punch him?---Around just his nose.

All right. Now hard did you punch him?---As hard as I could.

All right. And you said that he reached towards your throat. Did he actually grab your throat?---Yeah.

All right. How hard did he grab your throat?---Pretty hard.

All right. How long was he grabbing your throat for?---Only like a second or so.

All right. And you said he came at you with the knife in his right hand?---Yeah.

The knife: did it touch you or your clothing at any stage?---No.

All right. And how did you take it out of his hand?---I sort of had it in his handle and I grabbed – I grabbed his hand – the handle that was a little bit shown and I grabbed that little bit and managed to get it off him.

You didn’t touch the blade at all?---No.

You didn’t get any injuries from doing that?---No.”

100. [100]
     When asked about why he had lied to the police, the appellant reiterated that he was “just that embarrassed at the time … about what had happened… getting attacked on the toilet”.  He said he made up the story about hearing the deceased fighting with another man and about the note “just to connect the story”, “because I was embarrassed about the real one”.  He repeated that explanation, of being embarrassed, when it was put to him that he lied to police because he stabbed the deceased deliberately, and not to defend himself.

The arguments on the appeal

101. [101]
     On this appeal, no criticism is made about any aspect of the conduct of the trial, or any of the trial judge’s directions.  Whilst the prosecutor submitted at the trial that the appellant’s lies and other post-offence conduct demonstrated consciousness of guilt, the learned trial judge declined to treat the evidence in that way, on the basis that the lies and post-offence conduct were not, in his view, consistent only with an intentional killing done otherwise than in self-defence.  His Honour treated the lies and post-offence conduct as relevant only to the appellant’s credit.  It might be said the trial judge’s approach in that regard was overly generous to the appellant.^[28] However, it is unnecessary to say any more about that, given the arguments on this appeal.
102. [102]
     The appellant submits, first, that the conviction of murder was unreasonable, because his evidence could not be rejected beyond reasonable doubt.
103. [103]
     In my view, that submission is not sustainable.  The appellant’s evidence was incredible in the literal sense of the word: not credible; cannot be believed; beyond belief.  He told an elaborate web of lies to the police, both in the field interview and in the recorded interview at the police station, repeating his tale to the undercover police officer in his watchhouse cell.  The story he told the police was ridiculous, in many respects.  It was described by the trial judge as a “fantastic story”.  By the time of the trial, the appellant, no doubt faced with the forensic evidence, admitted that he had in fact been the one to cause the death of the deceased, and told a very different story about how that had come about, seeking in particular to suggest he had done so in self-defence.
104. [104]
     The narrative the appellant presented at the trial was likewise incredible.  The appellant admitted that the yellow-handled knife that he used to stab the deceased belonged to him.  That he would have used that to open a packet of razors, and leave the knife resting on the edge of the sink, is illogical and implausible.  So too is the notion that the deceased – who had lived in the unit complex for just over two years, and next door to the appellant for six months, with some of the other residents describing him, either in words or by reference to his conduct, as a friendly guy, who was always helping someone – would suddenly barge into the bathroom they shared, whilst the appellant was on the toilet, pick up a knife that was conveniently sitting on the edge of the sink, and lunge for the appellant’s throat.
105. [105]
     The appellant’s version at trial became even more implausible:  he was easily able to remove the knife from the deceased’s hand – by just grabbing the “little bit” of handle that was shown (not covered by the tea-towel), and without even touching the blade or getting any injuries at all.  And yet he contended that he was so fearful of the deceased, that it was necessary to stab him multiple times.  As the medical evidence demonstrated, the deceased was stabbed 34 times, to his face, chest, abdomen and neck, with varying degrees of force.  The photographic evidence of the location of the stab wounds shows many of them concentrated around the chest and heart area, and is consistent with a prolonged and persistent, violent attack with a knife.
106. [106]
     The appellant’s description of what he did, after stabbing the deceased in the bathroom, is also illogical and entirely lacking in credibility.  If he had in fact been the subject of a random attack by the deceased, leading him to fear for his life, and having just stabbed him and left him on the bathroom floor, logic says he would have run out and called for help.  Or if not – for fear of what might happen to him – at least stay in his unit where he had locked the door.  Instead, the appellant says that he waited a short time, about five minutes, then opened his locked door, and went back first to the bathroom and, finding the deceased man was not there, into the deceased man’s unit.
107. [107]
     The appellant’s story about the deceased man lunging at his ankle is also unbelievable.  If he was so fearful, it beggars belief why he would enter the deceased man’s unit at all, let alone stand next to him.  But in any event, it is impossible to see how the deceased man – who even on the appellant’s version had, by this time, sustained all but the stab wound(s) to the neck, and was lying on his back on the floor of his unit, in the location he is shown in the photographs tendered in evidence – could have “lunged” at him.  Whilst the medical evidence was to the effect that the stab wounds did not cause “immediate incapacitation” (I infer, in the sense of death, or lack of consciousness), the deceased was seriously, ultimately fatally, wounded at the point in time when he somehow managed to get himself back to his unit, before collapsing on the ground.  And then, even if all else that the appellant had said could be accepted, that the appellant would kneel down next to him, before stabbing him in the neck, is also unbelievable.  Even having done all of that, the appellant says he remained fearful of the deceased – yet proceeded to lock the door of the deceased’s unit, with himself inside, and take the time to steal the deceased’s bank card from his wallet.
108. [108]
     In support of the argument on the appeal, counsel for the appellant submitted that if one focusses on the aspects of the evidence that supported the appellant’s version, it could not be rejected beyond reasonable doubt.  Those aspects were said to be:

     1. (a)
        that two knives were located (said to be consistent with the appellant’s version that he left one knife in the bathroom initially, and took the second one into the deceased’s unit when he returned and stabbed him in the neck);
     2. (b)
        the deceased’s DNA was located on the blade of each of the knives;
     3. (c)
        the evidence supported that the incident had occurred in the shared bathroom;
     4. (d)
        there was no motive for the appellant to attack the deceased;
     5. (e)
        the deceased was found in his own unit, indicating he was still alive when he left the bathroom and went into his unit;
     6. (f)
        whilst there were a significant number of injuries, the large majority of them were described as superficial and none immediately disabled the deceased.
109. [109]
     Those consistencies, such as they were, between the appellant’s narrative at the trial, and other evidence, simply demonstrated that he had developed the story as he learned the details of the Crown’s case.  As counsel for the respondent submitted, the fantasy tale the appellant concocted when spoken to by the police, and in the watchhouse cell, also sought to address the objective evidence he then believed police would find, and adapted as he was confronted with other evidence (such as the discarded cooler bag and backpack).  There is little to be said for the argument by counsel for the appellant.  Those factors identified in paragraph [108] above do not overcome the conclusion that the appellant was a fundamentally unreliable and incredible witness, whose evidence was completely unbelievable.
110. [110]
     It is unnecessary to address every element of the appellant’s evidence at the trial, to explain why it should be rejected.  It suffices to say that I have no hesitation in concluding, having considered the whole of his evidence, in the context of all of the evidence led at the trial, that it was open to the trial judge to reject the appellant’s evidence, beyond reasonable doubt.
111. [111]
     Having done so, there was no basis to any claim that the killing was done in self-defence.  It was open to the trial judge to conclude that defence had been excluded by the Crown, beyond reasonable doubt.
112. [112]
     That leaves only the question of intention.  For the appellant, it was submitted that “the number and nature of the injuries do not ultimately bespeak only of an intent to do death or grievous bodily harm”.  I reject that submission.  There is only one rational inference to be drawn from the number of stab wounds inflicted, the knife used to inflict them, and the location on the body where many of them were inflicted – in particular those concentrated around the chest area, near his heart.  That is, that the appellant held the intention, at the very least, to inflict serious injury falling within the meaning of grievous bodily harm.  Again, in my view, it was open to the trial judge to find, beyond reasonable doubt, that at the time the appellant killed the deceased, he held an intention to at least cause him grievous bodily harm.
113. [113]
     It follows, from my review of the whole of the evidence at the trial, that it was open to the trial judge to find the appellant guilty of murder, beyond reasonable doubt.
114. [114]
     The appeal against conviction should be dismissed.

Application for leave to appeal the sentence imposed on the assault offence

115. [115]
     The appellant was only 22 years of age at the time of the offending, which occurred in the following way.  On the morning of 14 February 2019 (so three days before the killing) the deceased broke into unit 9^[29] of the complex where he lived and stole a television, sound bar and subwoofer (leading to a charge of burglary and stealing).  He took that property to Maryborough Loans and Traders, claimed he owned it, and tried to sell it to a Ms S.  She declined the sale, because the television stand was missing.  The appellant said he would return with the stand.
116. [116]
     He went back to the same unit, entered again and stole the television stand (leading to a second charge of burglary and stealing).  He then went back to Maryborough Loans and Traders, and tried again to sell the property, but Ms S again declined the sale (leading to a charge of attempted fraud).
117. [117]
     At this point, the appellant became angry and threw the television at Ms S, which resulted in damage to the television (leading to a charge of wilful damage). 
118. [118]
     Ms S told the appellant to leave the store.  He turned around and punched Ms S in the face with a closed fist and she fell to the ground.  The appellant started to walk away.  Ms S stood back up and picked up the sound bar.  She told the appellant to leave.  He turned around and punched her again in the face, with a closed fist, twice.  She fell to the ground again and got back up.  She sustained a cut lip (leading to a charge of assault occasioning bodily harm).
119. [119]
     The appellant left the shop.  Police came to the shop, and found Ms S visibly upset and bleeding from her lip.  The appellant independently went to the police station and reported his offending.  He participated in an interview, and confessed to the offending.  He said he “got angry” and “lost control” when Ms S declined the sale.  He was charged and released on bail.
120. [120]
     Three days later, on 17 February 2019, the appellant killed the deceased.  He was also charged with burglary and stealing on this day – for entering the deceased’s unit and stealing his bank card – and with attempted fraud – for trying to use the card at the BP service station to buy drinks and cigarettes.
121. [121]
     The appellant had a minor criminal history prior to this, having convictions only for possession of drugs (from 2014 and 2015) for which he was fined, and a conviction for trespass from 2018 for which he was also fined.  He had been in custody, on remand for murder, from 17 February 2019 (a period of just over three years).
122. [122]
     Following the trial and conviction of the appellant of the murder charge, he was arraigned on these additional charges and pleaded guilty.
123. [123]
     In the course of the sentencing submissions, the prosecutor submitted that the appropriate penalty for the assault occasioning bodily harm was 12 months’ imprisonment, with no additional penalty called for in relation to the other offences.  It was not said to be appropriate to extend the non-parole period in relation to the mandatory penalty of life imprisonment for the murder conviction.  The appellant’s trial counsel agreed that the sentence of 12 months’ imprisonment for the assault was appropriate.
124. [124]
     That was the penalty imposed by the sentencing judge, with the appellant convicted of the other charges, but no further punishment imposed.  His Honour took the view that the other charges, from 14 February 2019 (of burglary, stealing, attempted fraud and wilful damage) were inextricably bound up with the assault; and the later charges, from 17 February 2019 (of burglary, stealing and attempted fraud) were inextricably bound up with the murder.
125. [125]
     The appellant now seeks leave to appeal the sentence on the ground that it is manifestly excessive.  He submits this was “a minor example” of the offence, which did not result in serious injury.  He also emphasises that he was 22 years of age, with no prior criminal history for violence.  The appellant submits the penalty should be no more than three months.
126. [126]
     There is no basis to suggest the concurrent penalty that was imposed for the assault occasioning bodily harm offence was excessive.  Although it might be said the injury was at the lower end of what constitutes bodily harm, this was an irrational and unprovoked assault on a female shop assistant, which calls for strong deterrence.  Whilst the appellant had a minor criminal history prior to that offence being committed, with no convictions for offences of violence, it is relevant that he went on to commit murder three days later, whilst on bail for that offence.  It is apparent the sentencing judge adopted the approach approved in R v Nagy [2004] 1 Qd R 63 of imposing a penalty on the assault offence, taking into account the criminality all of the offending on 14 February 2019 (and without imposing separate penalties on those other offences).  That too supports the imposition of a penalty that, perhaps if looked at in isolation, could arguably have been lower.  In the circumstances, it cannot be said this sentence was unreasonable or plainly unjust.  I would refuse the application for leave to appeal against the sentence.
127. [127]
     MORRISON JA:  I agree with Bowskill CJ.
128. [128]
     HENRY J:  I agree with the evidentiary analysis and reasons of the Chief Justice and the orders proposed by her Honour.